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August 22, 2001

Petitioners, Catherine J. Whitney, Robin Whitney, RyanWhitney, Michael F. Harvey, and Marshal I. McMahon, appeal thetrial court's denial of Harvey and McMahon's petition for attorneyfees. Petitioners contend that the trial court abused itsdiscretion in denying the petition. For the reasons that follow,we affirm.

Decedent, Steven Strange, died testate on September 26, 1996. Decedent was the father of Robin and Ryan Whitney (the minors). Catherine J. Whitney was the mother of the minors. Decedent wasnever married to Catherine. Pursuant to decedent's will, a trustwas established for the benefit of each of the minors, andCatherine was named co-trustee. At the times relevant to thisappeal, respondent, Oak Brook Bank (the Bank), was co-trustee andthe corporate fiduciary for the minors. Craig Strange, decedent'sbrother, was executor of decedent's estate.

On November 15, 1999, attorneys Harvey and McMahon filed apetition for attorney fees and costs (the petition) seeking paymentfor legal services that they purportedly provided to Catherine andthe minors between April 16, 1999, and October 29, 1999. Harveyrequested $13,986, and McMahon requested $9,534. A 15-pagestatement was attached to the petition. The statement specifiedthe dates, the services provided, and the time Harvey and McMahonspent in providing each claimed service.

In the petition, Harvey and McMahon stated that they were theattorneys for Catherine, as guardian of the minors and as co-trustee of the trusts; that they were the attorneys for the minorsas beneficiaries of the trusts; that their hourly rate was $180;and that the statement of time and labor expended was reasonable inview of the novelty and difficulty of some of the questionsinvolved. Harvey and McMahon asserted that they provided serviceson matters that included numerous motions and petitions attemptingto replace the executor of decedent's estate; attempts to discoverhidden assets of the estate; necessary discovery of relevantparties; and attempts to determine whether the legal charges thatthe Bank sought were appropriate. Harvey and McMahon also assertedthat payment of their fees and costs was necessary to allow them toperhaps join in a related lawsuit to secure further assets for thetrusts and to investigate the possibility that the minors couldsucceed to the rights of decedent regarding claims related to hisestate.

The Bank filed a six-page objection to the petition. In theobjection, the Bank asserted that the requests for fees and costswere not reasonable because the claimed services were either notnecessary or did not pertain to the trusts. The Bank also assertedthat the time claimed for certain services appeared excessive andthat many entries in the time sheets were vague as to the purposeof the service and what was accomplished.

The executor of decedent's estate filed a four-page objectionto the petition, seeking its denial and sanctions against Harveyand McMahon. The executor asserted that Harvey and McMahon filedmotions and made arguments to the trial court that were "repletewith misrepresentations and frauds committed upon the Court." Theobjection listed five examples of the alleged misrepresentationsand frauds.

On January 24, 2000, the trial court conducted a hearing onthe petition. The court noted that it had read both of theobjections to the petition and Harvey's response to the objections. The court then asked Harvey (McMahon was not present) how he wishedto proceed. Harvey replied that he would waive argument and reston the pleadings but would respond if the other attorneys argued. The attorney for the executor made a short argument to which Harveydid not respond.

The trial court commented that it took all fee petitions veryseriously because attorneys have a right to be compensated fortheir work. The court noted that it had approved prior requestsfor attorney fees that had been filed by various parties. Thecourt stated that the factors to be considered in determining areasonable fee include "the time and labor put in, the novelty anddifficulty of the issues, the skill required, the preclusion ofother matters, customary fees in the community, amount of money inthe case, attorney's reputation, experience and ability and theresults obtained."

The trial court then questioned the reasonableness of about 10of Harvey and McMahon's specific fee requests. The court statedthat its questioning of these fee requests was not meant to be acomprehensive analysis of the fee requests. The court referred tothe objections filed by the Bank and the executor of decedent'sestate and indicated that the objections had merit.

The trial court also noted that it had allowed only 50% to 60%of the amount that Harvey and McMahon requested in a previouspetition for attorney fees. The court stated that it had "tried tosend a message with that" but that "the message didn't getthrough." The court denied the petition in its entirety, andpetitioners appealed.

On appeal, Harvey and McMahon contend that the trial courtabused its discretion when it denied the petition. The gist oftheir argument is that the trial court did not allow them a fairhearing to meet their burden of proof with respect to the petition. Alternatively, Harvey and McMahon argue that they are entitled toquantum meruit for their services.

The Bank initially responds that the appeal should bedismissed because this court lacks jurisdiction. The Bank arguesthat Harvey and McMahon erroneously contend that this court hasjurisdiction under Supreme Court Rule 304(b)(1) (155 Ill. 2d R.304(b)(1)). We first address the jurisdictional question.

Generally, where multiple parties or multiple claims areinvolved in an action, an appeal may be taken from a final judgmentas to one or more but fewer than all the parties or claims only ifthe trial court makes an express written finding that there is nojust reason to delay either enforcement or appeal. 155 Ill. 2d R.304(a). However, despite the absence of an express writtenfinding, an appeal may be taken in certain circumstances, includingthose specified in Supreme Court Rule 304(b)(1) (155 Ill. 2d R.304(b)(1)).

Supreme Court Rule 304(b)(1) provides:

"(b) *** The following judgments and orders areappealable without the finding required for appeals underparagraph (a) of this rule:

(1) A judgment or order entered in theadministration of an estate, guardianship, or similarproceeding which finally determines a right or status ofa party." 155 Ill. 2d R. 304(b)(1).

In contesting jurisdiction under Rule 304(b)(1), the Bankprimarily relies on People ex rel. A.M. v. Herlinda M., 221 Ill.App. 3d 957 (1991). In Herlinda M., a child abuse case, the officeof the public guardian was appointed guardian ad litem (GAL) forthe abused minors. The GAL subsequently moved to recover attorneyfees from the parents of the minors. On appeal from the denial ofthe motion for fees, the GAL argued that the appellate court hadjurisdiction under Rule 304(b)(1). The appellate court disagreed because the request for fees was collateral or incidental to theprincipal action and therefore did not fall within the scope ofRule 304(b)(1). Herlinda M., 221 Ill. App. 3d at 964-65.

Harvey and McMahon rely primarily on Lampe v. Pawlarczyk, 314Ill. App. 3d 455 (2000). Lampe involved a dispute between certainbeneficiaries of a trust and a co-beneficiary and trustee of thetrust. The trial court denied the beneficiaries' motion for attorney fees ostensibly related to their efforts to save the trustfrom destruction and restore it to its proper purposes. Thebeneficiaries did not file a notice of appeal or a postjudgmentmotion within 30 days of the trial court's order. When thebeneficiaries later appealed, the opposing party contested theappellate court's jurisdiction, arguing that the denial of themotion was appealable under Rule 304(b)(1) and that a notice ofappeal filed more than 30 days after the denial was untimely. Lampe, 314 Ill. App. 3d at 469.

The appellate court concluded that the denial was within thescope of Rule 304(b)(1) because it was entered in theadministration of the estate and finally determined the issue ofattorney fees. The court rejected the beneficiaries' argumentsthat Rule 304(b)(1) did not apply because the case involvedprivately administered trusts and because a fee request wascollateral or incidental to the principal action. In reaching itsconclusion, the Lampe court adopted the reasoning of In re Estateof Kime, 95 Ill. App. 3d 262 (1981).

In Kime, the court held that the denial of a petition forattorney fees was appealable under Rule 304(b)(1) in a case wherethe underlying issue was whether certain property belonged to anestate. The court stated:

"A central reason behind making the time for appeal of suchorders mandatory, and not optional, is that certainty as tosome issues is a necessity during the lengthy procedure ofestate administration. Little imagination is needed toconjure up the intolerable consequences of permitting a party,at his option, to wait until an estate administration isconcluded before appealing an order, entered perhaps severalyears previously, which denied a motion to remove an executoror allowed a claim against the estate. In such circumstances,were an appellant successful, then the entire administrationmight have to be begun again. Thus, in the interests ofefficiency and the sound and practical administration ofestates, orders in estate proceedings must be appealed within30 days from entry when they finally determine the right orstatus of a party, even though they are preliminary to a finalsettlement of estate proceedings." Kime, 95 Ill. App. 3d at268.

We agree with Lampe that Kime is persuasive. We also concludethat Kime's reasoning applies to this case.

Here, the trial court's denial of the petition was a finalresolution of the issue of fees. In addition, the administrationof the trusts could go on for a lengthy period. Therefore, in theinterests of efficiency and the sound and practical administrationof the trusts, the issue was immediately appealable.

Moreover, like the parties seeking attorney fees in Lampe,Harvey and McMahon alleged that their services benefited thetrusts. Therefore, their fee request was directly related to thetrial court's supervision of the administration of the trusts.

For these reasons, we conclude that Harvey and McMahon'spetition for attorney fees fell within the scope of Rule 304(b)(1). Accordingly, this court has jurisdiction to review the denial ofthe petition.

We now turn to the merits of the appeal. It is wellestablished that a trust may be lawfully required to bear thenecessary expenses of its own administration and preservation,including the payment of necessary attorney fees. Abend v.Endowment Fund Comm'n of McKendree College, 174 Ill. 96, 107(1898). Accordingly, a trustee may be entitled to reimbursementfor reasonable attorney fees related to the administration andpreservation of the trust. Fox v. Fox, 250 Ill. 384, 395 (1911). An attorney seeking fees has the burden of establishing the valueof his services. In re Estate of Callahan, 144 Ill. 2d 32, 43(1991).

In fee petition cases, because the trial court is familiarwith the underlying litigation, the court may independently assessthe necessity and reasonableness of the legal services rendered. Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590,595 (2000). Consequently, the trial court is not bound by thepetitioning attorney's opinion of what constituted a necessary orreasonable fee. In re Estate of Healy, 137 Ill. App. 3d 406, 411(1985). Therefore, the trial court has broad discretion indeciding whether to award attorney fees, and the decision will notbe reversed unless the court abused its discretion. Estate ofCallahan, 144 Ill. 2d at 43-44.

In this case, Harvey and McMahon contend that the trial courtdid not allow them a fair hearing to meet their burden of proof on their fee petition. However, the record simply does not supportthat argument. The report of the proceedings on the petition showsthat the trial court asked Harvey how he wanted to proceed at thehearing. Harvey chose to stand on the pleadings and not to arguehis position. Harvey did not respond to the argument of opposingcounsel. Harvey and McMahon did not file a postjudgment motionchallenging any aspect of the proceedings. Harvey and McMahon donot offer any specific suggestions as to how the hearing could havebeen more fair to them.

Next, Harvey and McMahon allege that the trial court failed toconsider the appropriate factors in determining whether theirpetition for fees was reasonable. To properly determine thereasonableness of an attorney's services, a court should considerthe skill and standing of the attorney, the nature of the case andthe difficulty of the questions involved, the amount and importanceof the subject matter, the time and labor required, the usual andcustomary fee in the community, and the benefit resulting to theclient. Estate of Callahan, 144 Ill. 2d at 44.

In this case, the trial court expressly stated the factors it considered in reaching its decision regarding the reasonableness ofthe fees that Harvey and McMahon requested. These factors were substantially the same as the factors in Estate of Callahan. Accordingly, Harvey and McMahon are not entitled to the reversal ofthe trial court's order on this ground.

Harvey and McMahon also suggest that they did not receive afair hearing because the trial court was biased against them. Atrial judge is presumed to be impartial, and the burden ofovercoming this presumption rests with the party asserting bias. That party must show actual prejudice in the form of personal biasstemming from an extrajudicial source and prejudicial trialconduct. Hartnett v. Stack, 241 Ill. App. 3d 157, 169 (1993). After carefully reviewing the record, we conclude that Harvey andMcMahon have not met this burden.

In sum, the record shows that the trial court considered theappropriate factors in determining the reasonableness and necessityof Harvey and McMahon's requested fees; that the trial courtconsidered the written objections to the petition; that the trialcourt allowed Harvey to choose how to proceed on the petition; andthat the trial court relied on its own knowledge and experience ofthe case in evaluating and questioning a number of the specific feerequests. Based on this record, we cannot say that the trial courtabused its discretion when it denied the petition for fees.

Lastly, Harvey and McMahon contend that they are entitled to a quantum meruit award for their services. Nothing in the recordindicates that Harvey and McMahon raised the issue of quantummeruit in the trial court. Consequently, we need not address theissue. See Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d486, 500 (1985) (issues not raised in trial court are waived andmay not be raised for first time on appeal).

The judgment of the circuit court of Du Page County isaffirmed.

Affirmed.

McLAREN and O'MALLEY, JJ., concur.